Winning Zoning Litigation Before the Lawsuit is Filed: Measuring Success by Things that Do Not Happen

This article, co-authored by Paul M. Mahoney, the County Attorney for Roanoke County, and Gregory J. Haley, a partner at Gentry Locke Rakes & Moore, was published in the “Journal of Local Government Law”, Vol. XXIII, No. 3, Winter 2013, a publication of the Local Government Section of the Virginia State Bar.

The purpose of this article is to keep Local Government Attorneys (“LGAs”) out of trouble. Sooner or later, every LGA will have the opportunity to defend the decision of his or her local governing body in a controversial land use matter. Some land use disputes evolve unexpectedly into litigation. In many cases, however, there are land use decisions where litigation is inevitable or at least likely. This article is intended as a resource for when litigation is expected in a land use matter; it sets out, in a checklist format, factors an LGA should consider in such circumstances.

A Roanoke lawyer named Frank Flippin has been known to explain good legal work with the wry observation: “It is difficult to measure success by things that do not happen.” When questioned, Mr. Flippin could not say whether he read this somewhere or thought it up himself. In any event, this observation is particularly appropriate in the context of avoiding zoning litigation. A lot of good lawyering is invisible — bad things do not happen because of good preventive legal practice.
It is easy to declare that an LGA must know the applicable law and make sure the locality complies with all requirements. The real world, however, has a way of throwing up obstacles, including competing demands for limited resources (including time), uncooperative staff, disinterested members of the governing body, aggressive developers, angry citizens, and a host of other factors.

The evolution of zoning law and zoning ordinances has created a situation in which it can be quite difficult to adopt zoning ordinance amendments, or take a significant land use action, without running afoul of some procedural requirement. A challenger will flyspeck the zoning record to find a defect. It behooves an LGA, therefore, to do the same.

The LGA must overcome the inertia of the normal. Compliance with procedural requirements only matters when there is a litigation challenge. Accordingly, when a challenge is an obvious possibility, the LGA must ensure that the zoning process is not carried on as “business as usual.” The case reports are replete with decisions invalidating zoning actions because of procedural defects or the failure of the locality to create an adequate legislative record establishing the fairly debatable nature of the challenged decision. The LGA, therefore, has a compelling interest in getting involved at an early stage.

A. Getting in Front of the Problem.

The first challenge is to recognize the problem coming. There are certain “lightning rod” projects in which litigation is likely — landfills, asphalt plants, quarries, windmills, and local government initiated text amendments that limit development rights. Other high-profile projects that are good litigation candidates include: big box and large retail projects, large residential projects with significant traffic impacts, locality-initiated “economic development” projects, truck stops, and anything associated with the word “history”.

In these cases, the LGA must get involved at an early stage. This means extra work, intruding on the traditional turf of the land use staff, and doing things differently than is typically done. The LGA ends up managing the staff, the governing body, the applicant and the citizens. The land use policy issues remain the responsibility of the staff to develop. Nevertheless, the legal issues — both procedural and substantive — require substantial legal input.

The locality’s land use team should develop a checklist that identifies every procedural and substantive requirement under the statutes and the locality’s zoning ordinance. This list should also anticipate foreseeable problems and set out strategies to manage the foreseeable problems.

B. Two Bottom Line Rules.

There are two bottom line rules that must be remembered in this context.

1. Procedural Errors. Procedural errors are fatal. A locality cannot win if there has been a procedural error in the zoning process. The locality must go back and repeat the process and correct any procedural errors. See e.g., Renkey v. County Board, 272 Va. 369 (2006); City Council v. Potomac Green Associates, 245 Va. 371 (1993).
2. The Fairly Debatable Rule. The courts will forgive just about anything, even bad judgment, if there is some record establishing a valid basis for a land use decision. See e.g., City Council v. Wendy’s, 252 Va. 12 (1996). In Wendy’s, the Supreme Court of Virginia upheld the denial of a rezoning application to allow a commercial use on a major highway when the legislative record established that denying the commercial rezoning allowed the locality to reserve property for future industrial development.

C. The Pre-Application and Application Process.

1. Text Compliance. Problems can be avoided at this stage by insuring that the proposed use meets applicable text definitions and the proposed use is listed as a permitted use or a special use in the relevant district.
2. Comprehensive Plan Issues. Possible projects should be reviewed for comprehensive plan compliance and whether review under Va. Code § 15.2-2232 is required.
3. Subdivision and Site Plan Issues. The possible project should be reviewed to determine whether there are subdivision or site plan issues that need to be analyzed before an application is filed.
4. Maintaining credibility. The pre-application process can create a dynamic in which the developer interprets the staff’s comments as support for the project and a commitment that the locality will act in specific ways. The only way to attempt to manage this dynamic is through appropriate limiting comments and disclaimers. The staff must develop credibility with all the stakeholders by “calling balls and strikes” and not taking sides.
5. Drafting Conditions and Proffered Conditions. The pre-application process also involves the negotiation and drafting of conditional use permit conditions and possible future proffered conditions. At the time the application is filed, the proposed conditions or proffered conditions should be clearly written and describe who will do what, when and how. There should be specific triggers and benchmarks in the conditions. Vague language should be avoided.
   Proffered conditions must comply with the complicated and confusing provisions of Va. Code Ann. §§ 15.2-2297 and 15.2-2298.
6. E-Mail Discipline. Throughout the application and review process, the staff should be professional in its e-mail communications. If the LGA becomes aware of playful or insulting e-mail communications among the staff, he or she should immediately intervene to end the practice. These types of e-mail communications will inevitably end up in the public eye if there is litigation.
7. Application Review. Once an application is filed, the staff must carefully review the application documentation to ensure that it is in proper form, all required information and attachments are included, the ordinance references are correct, and all signatures are in place. If there is a problem, it should be identified and corrected at an early stage.
8. Dealing with the Bad Application. In some cases, a developer may insist on filing an application that includes procedural or substantive problems. In such cases, the staff must be direct in advising the applicant of the problems at the earliest possible stage.
9. Amendments Initiated by the Locality. In situations in which the governing body or the planning commission is initiating zoning ordinance amendments pursuant to Va. Code § 15.2-2286(A)(7), the initiating resolution must include the public purpose language required by § 15.2-2286(A)(7) and must also satisfy the requirements of the locality’s zoning ordinance.

D. The Staff Report.

The Staff Report as Evidence. The staff review will include substantive and procedural reviews of the application. In a case in which litigation is possible, the LGA should consider the staff report as an opportunity to ensure that the legislative record establishes the fairly debatable nature of the land use action.

A good staff report will review the land use reasons both to approve or disapprove a proposed zoning action. In this situation, the LGA can anticipate that the staff report will serve as a key exhibit establishing the fairly debatable nature of the governing body’s action.

To accomplish this utilitarian goal, the LGA should be directly involved in drafting the staff report.

In cases in which litigation is likely, the staff will have to consider whether to include any type of recommendation. This decision will be influenced by the typical practice in the locality. The decision as to whether to include a recommendation can be a particular challenge when it is not clear how the planning commission or governing body may decide the issue.

E. The Public Process.

1. A good public review and comment process prevents a challenger from arguing that the public role in the process was inappropriately minimized. In ideal situations, therefore, there will be significant opportunities for public comment which could include neighborhood meetings, workshops, and public hearings. If the locality conducts multiple public hearings, much of the anger and outrage of the stakeholders can be vented at the early meetings. In other situations, however, the press of circumstances may reduce opportunities for public comment. In such situations, the locality should maximize the opportunities for public comment to the extent practical.
2. Posting. The staff must ensure that the affected properties are posted as required by the zoning ordinance.
3. The Advertised Notice. The advertised notices of the required public hearings must comply with the provisions of §§ 15.2-2204(A) and 15.2-2285(C) and any additional requirements imposed by the zoning ordinance amendment provisions or conditional use permit provisions. Section 15.2-2204(A) provides that the advertisement must include a descriptive summary of the proposed action. The courts have been strict in requiring localities to comply with the descriptive summary requirement. See Gas Mart Corp. v. Board of Supervisors, 269 Va. 334 (2005); Glazebrook v. Board of Supervisors, 266 Va. 550 (2003). The Gas Mart decision has been heavily criticized as an overly strict reading of the descriptive summary requirement in circumstances in which there had been extensive public notice and participation. Nevertheless, the Court’s message is clear – the locality must ensure that the advertised notice gives a clear explanation of the proposed land use action. Drafting a “descriptive summary” for a complicated proposed zoning action that complies with the descriptive summary requirement is a daunting task when litigation is expected. In such cases, the LGA should be deeply involved in drafting the advertisement. The LGA should read and study the Gas Mart and Glazebrook decisions cited above. The advertisement should be in plain English and minimize the use of land use jargon and technical terms. If there is a challenge to the advertisement, the judge should be able to read the advertisement and easily understand the nature and effect of the proposed action. The LGA should develop a checklist to ensure the advertisement includes the elements required by §§ 15.2-2204(A), 15.2-2285(C), and the Zoning Ordinance. The checklist should include, at a minimum:
   
   a. Title. “Notice of Intention” to consider the specific action.
   b. Descriptive summary of the proposed action. This could include: the specific parcels affected; a description of the areas and the locality that would be affected; a description of the nature and characteristics of the proposed change in the zoning regulations; a description of the existing regulations; a description of how the zoning map would be changed; and a description of the existing comprehensive plan designation and density provisions as required by § 15.2-2285(C) (in cases involving zoning map changes).
   c. A reference to the places where copies of the materials may be examined.
   d. The time and place of the public hearing.
   e. A statement that persons affected may appear and present their views.
   f. In cases involving a proposed zoning map change, the public notice must state the general usage and density range of the proposed amendment and the general usage and density range, if any, set forth in the applicable part of the comprehensive plan.
   g. Anything else required by the locality’s zoning ordinance.
4. Publication. Section 15.2-2204(A) requires that the notices must be published in a newspaper published in or having general circulation in the locality. The publication must be made once a week for two successive weeks. The notices must be published at least twice with not less than six days elapsing between the first and second publication. The LGA should count the days to confirm that these requirements, and any additional requirements under the locality’s zoning ordinance, are met. Errors in the timing and sequence of publication are common. The notices for both the planning commission and the governing body may be published concurrently. If the planning commission and the governing body hold a joint public hearing, the published notice need only be given by the governing body.
5. The Property Owner Notice Letters. Section 15.2-2204(B) requires that the locality provide written notice to property owners when a proposed amendment to the zoning ordinance involves a change to the zoning map classification of property. Property owners must also receive written notice if the proposed zoning amendments involve a change to the zoning ordinance text that decreases the allowed dwelling unit density of any parcel of land. This written notice must be given at least five days before the hearing. If a proposed amendment affects less than twenty-five parcels, then this written notice must be sent to the affected property owners, the owners of abutting properties, and the owners of properties immediately across the road or street. If the proposed amendment affects more than twenty-five parcels, then the notice must be sent to the owners of each parcel of land involved. The locality must also comply with any specific notice requirements under the locality’s zoning ordinance. Section 15.2-2204(B) does not specify what the written notice must contain. At a minimum, the property owner notice should contain the same information in the published advertised notice. If practical, the notice should include a description of how the proposed amendments will affect the property.
6. Public Hearing Logistics and Rules. If a large public turnout is expected, the locality should ensure that the location for the public hearing is adequate. Appropriate public address equipment should be available. The locality should arrange for the attendance of law enforcement officers, if appropriate. The planning commission and the local governing body should also consider adopting rules for the public hearing, including time limits on speakers and prohibitions against personal attacks.
7. Preparing the Board and Commission Members. If a contentious public hearing is expected, the LGA should prepare the planning commission members and governing body members for the hearing. The chair should be briefed to anticipate inappropriate comments and remarks and how to best manage such incidents. The LGA should caution the planning commission and governing body members to carefully consider any comments they make. Any such comments must be addressed only toward appropriate land use factors. The members should make no comments suggesting bias, prejudice, or other factors that could be considered unfair. The LGA can point out that any such comments will undoubtedly be quoted in the newspaper and in the pleadings if litigation follows. One technique is to suggest to the members that their comments should address only the “magic words” of land use concerns including:
   – Traffic
   – Adequacy of streets and related facilities
   – Parking
   – Access- Noise
   – Odors
   – Dust
   – Artificial lighting/glare- Adequate water and sewer facilities
   – Storm water management- School facilities
   – Parks
   – Open space
   – Recreation facilities
   – Economic development
   – Tax revenues
   – New jobs
   – Retaining existing businesses- Minimizing impacts on nearby properties
   – Buffers
   – Screening
   – Landscaping
   – Property values
   – Compatible/incompatible uses- Wetlands
   – Floodplains
   If litigation is expected, the LGA can brief the governing body in a duly-called closed meeting and explain the legal issues involved pursuant to Va. Code § 2.2-3711(A)(7).
8. Preparing the Ordinance, the Resolution, and the Recommendation. In situations in which litigation is expected, the LGA should prepare the resolutions and ordinance documents with care. In some cases, the LGA should prepare documents both approving and denying the requested action.
   a. Required Findings.
   Many zoning ordinances require that the planning commission or governing body consider specific factors or make specific finding as a precondition to granting a conditional use permit or amending a zoning ordinance. The LGA must ensure that the resolution and ordinance documents include references to required study factors and any specific findings as may be required by the zoning ordinance.
   b. Conditions.
   The LGA should have language available for any conditions that may be imposed as part of the conditional use permit process.
   c. Proffers.
   The LGA should anticipate, to the extent possible, any language changes or proffer changes that may be discussed as a result of the public hearing process. Any proposed changes to proffered conditions must comply with § 15.2-2297(A).
   d. Recitals.
   Finally, when litigation is likely, the LGA should consider including recitals that help establish procedural compliance and the fairly debatable nature of the action. The ordinance or resolution can also refer to the staff report and the land use factors that have been considered to help establish the fairly debatable nature of the action as part of the legislative record. If this technique is used, and litigation follows, the locality can use the legislative record to help prove not only procedural compliance but also that the action satisfies the fairly debatable rule.
   These documents can make a self-authenticating, self-proving, and essentially unimpeachable record of the legitimate land use reasons proving the fairly debatable nature of the challenged land use decision. For example, the amendments or resolution can recite that the governing body has considered the impact of the proposed use on nearby properties and concluded that the applicable conditions and restrictions adequately mitigate the foreseeable adverse effects. Similarly, the amendments or resolution could recite the economic benefits, including new jobs and tax revenues, that will result from the development project and benefit the community.
   e. Roll Call Vote.
   The LGA should ensure that the action is taken by a roll call vote.
9. Additional Problems to Avoid. In, thankfully, rare cases, zoning actions have been challenged based on allegations of improper actions by the governing body or the locality’s staff. To avoid this remote possibility, the LGA should make sure that there are no secret meetings or bending of the rules. If mistakes are made, they should be acknowledged and corrected in an open and fair process.
10. The Result. If these steps are followed, they should minimize the chance of a litigation challenge to the zoning action because there has been good procedure, good substance, and a clear record demonstrating procedural compliance and the fairly debatable nature of the decision. If such a challenge is nevertheless brought, the locality should prevail at the earliest possible stage.

F. Litigation Issues.

The handling of litigation, if brought, is beyond the scope of this article. Several brief points, however, may be helpful.

First, the locality should immediately give notice to its insurer. Some policies provide for coverage for the cost of defense if a land use challenge is brought and the insurer is notified in a timely manner.

Second, if the complaint indicates that the locality made a procedural error, the locality should seriously consider going back through the process to correct the procedural error. It may be quicker and cheaper to repeat the legislative process than continue the litigation.

Third, the locality should decide early whether to use in-house staff or hire an outside expert to give testimony on the land use issues.

Fourth, the locality should use the legislative record at an early stage to defend. The LGA should consider a motion craving oyer or judicial notice to get the legislative record before the court at the earliest possible stage.

Fifth, the locality should resist any efforts to take the deposition of members of the governing body. The individual analysis or motive of elected members of the governing body are rarely, if ever, relevant, admissible, or even subject to discovery.

Sixth, the LGA should take every opportunity to frame the issues in the litigation including familiarizing the court with the fairly debatable standard.

This article covers as much ground as possible but, given the myriad of situations in which these issues may arise, it is inevitable that novel issues will develop that will challenge the most diligent local government attorney. The local government attorney, however, is in a unique position to make the governing body look good, make the planning staff look good, and implement good land use and public policy. Using the points reviewed in this article, the LGA can frame the issues, improve the facts, create a better record and successfully manage any litigation that cannot be avoided.